J-S12038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DERRICK WHITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1883 EDA 2023

Appeal from the Order Entered June 22, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0012991-2010

BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 14, 2024

Appellant Derrick White appeals from the post-conviction court’s order 

denying, as untimely, his third petition under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. The court concluded that Appellant failed 

to prove the newly-discovered-fact exception to the statutory time bar. We 

affirm.

Appellant was convicted of, inter alia, homicide in the first degree, 

conspiracy to commit murder, and witness intimidation. The victim, Abdul 

Taylor, had witnessed the murder of Allen Moment, Jr. As set forth in our 

decision affirming Appellant’s judgment of sentence on direct appeal, Taylor 

was hanging out with Nafeas Flamer (Nafeas) and Hakim Bond; Nafeas was 

waiting for Moment to return a gun. The group heard gunshots from behind 

and fled. Nafeas “later told [Taylor] it was a set-up, and indicated a desire to 

seek revenge” on Moment. Commonwealth v. White, No. 1152 EDA 2015, 
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unpublished memorandum at 2 (Pa. Super. filed Feb. 5, 2016). Several days 

later, Taylor heard Nafeas making remarks indicating that he was going to kill 

Moment that same evening. Taylor refused to participate and left. Two days 

later, a man visited Taylor’s house and told him that Nafeas and Bond were 

upset that Taylor did not want to be involved. That evening, Moment was 

shot and taken to a hospital, where he remained in critical care for over two 

years. Shortly before his death, Moment gave a statement that led to the 

arrests of Nafeas and Bond, along with Nafeas’ uncle, Marvin Flamer (Marvin).

Appellant became involved following the arrests. Taylor informed family 

members that Nafeas and Marvin wanted him to give a false alibi for the night 

of Moment’s shooting. Taylor then cooperated in the Moment investigation, 

after which “he acquired a reputation in the community as a ‘snitch.’” Id. at 

4. Authorities listened to Marvin’s jailhouse recordings and heard a 

conversation from September 18, 2008, in which Marvin asked his mother, 

Geneva, “to find out what type of evidence the Commonwealth had against 

him. [Geneva] said they had ‘the boy’ listed as living at the address of 

[Taylor]’s girlfriend.” Id. Marvin then asked his mother “if Appellant had 

‘gone up there’ yet, and [Geneva] said no. [Marvin] then said, ‘Man, they 

bullshittin’. Like everybody sayin’ they gonna do something, they don’t do 

it.’” Id. (quoting trial transcript). On May 6, 2010, Taylor was shot in the 

head and Appellant was arrested. He was interviewed by Detective James

Pitts, and Appellant told Pitts that “he had killed [Taylor] in self-defense....” 

Id. at 5.
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We denied Appellant’s direct appeal on February 5, 2016, and our

Supreme Court subsequently denied his request for further review on July 19, 

2016. Appellant thereafter filed a timely PCRA petition, the denial of which 

we ultimately affirmed by order dated March 25, 2019. Commonwealth v. 

White, No. 4056 EDA 2017, unpublished memorandum (Pa. Super. filed Mar.

25, 2019). Appellant’s petition included two claims which have some overlap 

with this litigation. First, Appellant argued that his attorney ineffectively failed 

to rebut inferences drawn by the Commonwealth regarding the September 18, 

2008 phone call between Marvin and Geneva. The Commonwealth introduced 

the phone call as circumstantial evidence of the conspiracy between Marvin 

and Appellant, arguing that it showed Marvin wanted Appellant to confront 

Taylor. Appellant, in contrast, claimed that there was an innocent explanation 

for the conversation. Appellant cited “three lines in the recording[,] ...

claim[ing] that the conversation was actually about a newspaper’s misprint of 

[Marvin]’s nephew’s address....” Id. at 12. We rejected that claim, quoting 

additional portions of the phone call which showed “that [Marvin] was 

concerned about the evidence the prosecution had against him for killing 

Moment; that he wanted Appellant to ‘go up there’ and ‘do something’ about 

the case; and that when he learned that Appellant had not ‘go[ne] up there 

yet,’ he became upset....” Id. at 13-14.

Second, Appellant pursued an after-discovered-evidence claim based on 

allegations that Detective Pitts “had a prolonged pattern of coercing false 

statements from defendants and witnesses in other cases.” Id. at 9. We 
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denied relief for two reasons. First, Appellant testified at trial, and the judge

“instruct[ed] the jury to refrain from considering his statement to the police 

unless it first determined the statement was voluntary.” Id. at 10. We noted 

that, “[u]nder these circumstances, had the detectives actually coerced him 

into giving a confession, he would have said so. Appellant, however, said the 

opposite.” Id. Second, “evidence of Detective Pitts’ conduct in other cases ...

would only have impeached his credibility without undermining belief in the 

voluntariness of Appellant’s statement in the present case—a fact which, as 

discussed above, Appellant’s own testimony establishes.” Id. at 11. 

Appellant, acting pro se, filed this PCRA petition, his third, on December 

27, 2022.1 Appellant included affidavits2from Fatih Anderson and Marvin. 

Anderson, who was an inmate at the same correctional facility as Appellant, 

wrote that while he was awaiting an evidentiary hearing, he spoke to another 

inmate, Dominick Booker, who introduced him to Nafeas. According to 

Anderson, Nafeas told him “that he never had any conversations with 

[Appellant] that led to the killing of Abdul Taylor as the Commonwealth 

alledgley [sic] insisted, and that the conversations the Commonwealth used 

____________________________________________

1 Appellant’s second petition was dismissed as untimely, and we affirmed on 

appeal. Commonwealth v. White, No. 875 EDA 2022, unpublished 

memorandum (Pa. Super. filed Nov. 29, 2022). 

2 The documents were not sworn by oath before a judicial officer. “By 

definition, an affidavit is a statement of facts confirmed by oath before an 

officer having authority to administer the oath.” Commonwealth v.

Chandler, 477 A.2d 851, 853 (Pa. 1984). For ease of reference, we will refer 

to these documents as affidavits.
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to convict [Appellant were] false and misleading.” Pro se Petition, 12/27/22, 

Exhibit A at unnumbered 1. Marvin’s affidavit addresses the September 18, 

2008 phone call. Within, Marvin referenced a June 10, 2020 affidavit that he 

had authored for Appellant. Marvin learned that Appellant had failed to secure 

relief and wrote that he “would like to bring attention to the fact that I left a 

few things out, and wasn’t asked about [sic].” Id., Exhibit B at unnumbered 

1. Marvin’s affidavit relates that he was “simply speaking with my mother 

about a ‘South Philly Review’ article ... and a mistake made with my nephew’s 

address being listed as 1800 N. 29th street.” Id. Marvin explained that when 

he asked if Appellant had “gone there yet,” he was “simply asking did he go 

visit my nephew yet, not to any witness[’] address.” Id. Marvin wrote that 

his case “was wrongly tied” to Appellant “due to the Commonwealth[’s] 

misleading and false theories.” Id. 

On January 26, 2023, the PCRA court issued a Pa.R.Crim.P. 907 notice 

of its intent to dismiss Appellant’s petition without a hearing, concluding that 

it was untimely and none of the exceptions was met. Addressing Marvin’s 

affidavit, the PCRA court concluded that the affidavit “merely serves as a new 

source of previously alleged facts,” Notice of Intent to Dismiss, 1/26/23, at 3, 

as Appellant had, in prior proceedings, “tr[ied] to argue that the September 

18, 2008 prison call was about a misprint in a newspaper article” and Appellant 

could not “claim that the alleged fact was unknown” to him. Id. As to Fatih

Anderson, the PCRA court concluded that Appellant failed to establish due 

diligence; additionally, the affidavit “is inadmissible hearsay evidence.” Id. 
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Appellant filed a counseled response to the notice of intent to dismiss, 

which cited, for the first time, newly-discovered facts concerning Detective 

Pitts. Appellant claimed that, when he litigated his motion to suppress his 

statements to Detective Pitts, the Commonwealth violated its Brady3

obligations by failing to disclose Internal Affairs complaints. Appellant said 

that, “[a]t the time, unbeknownst to [Appellant], Detective Pitts had had two 

sustained Internal Affairs complaints....” Reply to Notice, 5/17/23, at 4. 

Appellant argued that this constituted a “clear Brady violation....” Id. 

Appellant did not request permission to amend his petition. 

The PCRA court then held a hearing on June 8, 2023. Regarding 

Detective Pitts, the PCRA court stated, “[Appellant] raised [that] previously. 

So why does he get another bite at it?” N.T., 6/8/23, at 5. Appellant replied, 

“Because there’s been new disclosures about Detective Pitts. We now know 

he is going to be standing trial with three counts, including perjury, in the fall. 

We didn’t know that before. It casts into doubt everything that he’s done.” 

Id. at 5-6. The Commonwealth replied, “I think the way [Appellant] is trying 

to phrase it, essentially, is that Pitts being criminally charged or indicted is the 

new fact ... [and] I just want to make sure I’m clear on that[.]” Id. at 6. 

Appellant agreed, stating: “Yes, because it changes the circumstances, 

whereas [Appellant] was not credited or believed last time about Detective 

Pitts.” Id. 

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3 Brady v. Maryland, 373 U.S. 83 (1963).
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The PCRA court took the matter under advisement, and subsequently 

concluded that the claim was waived because Appellant failed to request 

permission to amend his PCRA petition. The court then dismissed the petition

on June 23, 2023, by joint order and opinion. Appellant filed a timely notice 

of appeal and complied with the order to file a Pa.R.A.P. 1925(b) statement. 

The PCRA court adopted its June 23, 2023 order and opinion in satisfaction of 

Rule 1925(a). Appellant raises the following claims for our review:

I. Did the PCRA court err in holding that Marvin Flamer’s July 12,

2022 affidavit does not satisfy the newly-discovered[-]fact

exception under 42 Pa.C.S. § 9545(b)(1)(ii)? 

II. Did the PCRA court err in holding that Fatih Anderson’s July 17, 

2022 affidavit should be disregarded as hearsay and that its 

contents should have been discovered earlier in the exercise of 

due diligence?

III. Did the PCRA court err by not affording an evidentiary hearing 

on the timeliness issues and[,] thereafter, on [Appellant’s]

substantive claim?

IV. Did the PCRA court err in holding that [Appellant’s] Brady

claim with respect to Detective Pitts was waived for failure to 

make an explicit motion for leave to amend to include that claim?

V. Did the PCRA court err[] ... by holding that Detective Pitts’

criminal misconduct has no nexus to [Appellant’s] case, that it is 

not material under Brady, and that the June 21, 2022 

commencement of said criminal charges did not qualify as a 

newly-discovered fact for purposes of 42 Pa.C.S. § 9545(b)(1)(ii)? 

Appellant’s Brief at 2-3.

“The question of whether a petition is timely raises a question of law. 

Where the petitioner raises questions of law, our standard of review is de novo

and our scope of review plenary.” Commonwealth v. Taylor, 65 A.3d 462, 
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468 (Pa. Super. 2013) (citations omitted). Where, as here, a PCRA petition is 

filed more than one year after the judgment of sentence has become final, the 

petitioner must plead and prove the applicability of a statutory exception to 

the time-bar. See 42 Pa.C.S. § 9545(b)(1). Appellant solely relied upon the 

exception known as the newly-discovered-fact exception, which applies where

“the facts upon which the claim is predicated were unknown to the petitioner 

and could not have been ascertained by the exercise of due diligence[.]” 42 

Pa.C.S. § 9545(b)(1)(ii). 

The argument in this case centers on the “no new source” rule, which

flows from the plain language of the exception. “[A] witness’ admission of 

evidence previously available to a petitioner cannot resurrect an untimely 

PCRA claim as such a result would clearly run contrary to the plain language 

of the exception that the facts upon which the claim is predicated were 

unknown to the petitioner....” Commonwealth v. Johnson, 863 A.2d 423, 

427 (Pa. 2004) (quotation marks omitted; emphasis in original). The 

exception “focuses on newly discovered facts, not on a newly discovered or a 

newly willing source for previously known facts.” Id. (emphasis in original).

Appellant’s first claim largely addresses the PCRA court’s conclusion that 

Marvin’s affidavit constituted a new source of facts previously known to him.

Appellant argues that the affidavit is a new fact because he only “knew for 

certain what the conversation was really about” after obtaining Marvin’s 

affidavit. Appellant’s Brief at 19. Because Appellant views the relevant fact 
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as Marvin’s disclosure of his subjective beliefs, he turns his attention to 

whether he exercised due diligence in discovering that fact. 

Appellant’s view of how a court must construe the nature of the newlydiscovered fact is contrary to caselaw. Our Supreme Court’s decision in

Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008), offers a factually 

comparable application. In Abu-Jamal, the PCRA petitioner was convicted of 

murdering a police officer. The petitioner invoked the newly-discovered-fact 

exception based on an affidavit obtained on January 28, 2002, and signed by 

Yvette Williams. Her affidavit related that Cynthia White, a Commonwealth 

witness, told Williams that “she testified [Abu-Jamal] was the shooter because 

the police threatened her; she had not actually seen the shooting.” Id. at 

1265 (footnote omitted). This was not an entirely new claim, however, as 

Abu-Jamal had, in prior proceedings, sought to establish that the 

Commonwealth failed to disclose that it had promised White leniency in 

exchange for her testimony. Id. at 1269 n.12. The Court held that the 

affidavit could not satisfy the exception because the discovery of “yet another 

conduit for the same claim of perjury does not transform his latest source into 

evidence falling within the ambit of § 9545(b)(1)(ii).” Id. at 1269. 

More recently, an en banc panel of this Court explained that the “no new

source” rule forecloses newly-discovered facts that serve to “corroborate 

previously known facts or previously raised claims.” Commonwealth v.

Maxwell, 232 A.3d 739, 745 (Pa. Super. 2020) (en banc). The purported 

newly-discovered fact in that case was a revelation from Maxwell’s brother in 
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2016, regarding a conversation that he overheard between the assistant 

district attorney and a police officer, with the prosecutor’s stating that he “did 

not believe that any African-Americans would serve on the jury.” Id. Notably, 

Maxwell had raised, during PCRA proceedings in 2000, a claim that his trial 

counsel ineffectively failed to object to the prosecutor’s use of peremptory 

strikes in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

4

 We 

concluded that the affidavit was simply corroborative of theories he had 

already pursued, explaining that “[the] statement did not bring anything ‘new’

to [Maxwell]’s attention.... The only ‘new’ aspect of [Maxwell]’s claim was 

that a newly-willing testimonial source had come forward to corroborate a 

legal theory [Maxwell] raised decades before.” Maxwell, 232 A.3d at 746 

(citing Abu-Jamal, supra at 1267; emphasis in original). 

These precedents establish that the PCRA court did not err in concluding 

that the Marvin affidavit does not satisfy the time-bar. As in Abu-Jamal,

Appellant here is seeking to revive the same generic claim that he pursued in 

a prior proceeding. In that case, the generic claim was that the 

Commonwealth induced the witness to falsely testify. In Appellant’s case, the 

generic claim is that Marvin’s conversation with his mother had an innocent 

explanation. The PCRA court correctly determined that the affidavit is nothing 

more than a new source to corroborate that same factual predicate. That 

____________________________________________

4 As Batson was issued after Maxwell’s trial, we described “the substantive 

claim [Maxwell] seeks to raise before the PCRA court as a ‘Batson challenge’ 

or ‘Batson-type challenge.’” Maxwell, supra at 741 n.2.
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Appellant has a “newly-willing testimonial source ... to corroborate a legal 

theory” he previously pursued is not sufficient to satisfy the Section 

9545(b)(1)(ii) exception. Maxwell, supra at 746.5

Alternatively, the PCRA court’s order may be affirmed on the basis that 

Appellant failed to prove that he was duly diligent in discovering the facts. 

Commonwealth v. Williams, 125 A.3d 425, 433 n.8 (Pa. Super. 2015) 

(“[A]s an appellate court, we may affirm on any legal basis supported by the 

certified record.”). As the Commonwealth points out, Marvin’s affidavit 

references an affidavit supplied by Marvin to Appellant in June of 2020. 

Appellant fails to explain why his due diligence obligations did not extend to 

simply asking Marvin to explain his perception of the phone call back then.

6

 

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5 Appellant asks this Court to find persuasive our unpublished memorandum 

decision in Commonwealth v. Brown, No. 2184 EDA 2017, unpublished 

memorandum (Pa. Super. filed May 11, 2018). We decline to address that

case and whether it supports Appellant’s position. Appellant is correct that 

unpublished cases may be cited for their persuasive value, but that applies 

only to decisions filed after May 1, 2019. Pa.R.A.P. 126(b)(1). 

6

In his reply brief, Appellant maintains that he “had no way of uncovering” 

the new details “unless and until Marvin ... became willing.” Appellant’s Reply 

Brief at 4. Appellant claims that the affidavit “clearly states that there were 

facts [Marvin] held back at that earlier time....” Id. Appellant ignores, 

however, that Marvin’s affidavit stated he “wasn’t asked about” those details. 

See supra at 5. In context, the details that Marvin held back were due to 

Appellant’s failure to ask further questions. 

As a general proposition, we agree that assessing a petitioner’s due 

diligence obligations is complicated when dealing with reluctant witnesses. In 

the somewhat analogous area of witness recantation testimony, we have 

recognized the inherent difficulty of compelling a witness to contradict their 

testimony. See Commonwealth v. Medina, 92 A.3d 1210, 1217 (Pa. Super. 

(Footnote Continued Next Page)
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“To qualify for an exception to the PCRA’s time limitations under subsection 

9545(b)(1)(ii), a petitioner need only establish that the facts upon which the 

claim is based were unknown to him and could not have been ascertained by 

the exercise of due diligence.” Commonwealth v. Burton, 158 A.3d 618, 

629 (Pa. 2017). The due diligence inquiry “is fact-sensitive and dependent 

upon the circumstances presented.” Commonwealth v. Shiloh, 170 A.3d 

553, 558 (Pa. Super. 2017) (quotation marks and citation omitted). Here, the 

relevant circumstance is that Marvin previously committed to assisting 

Appellant in pursuing collateral relief. Appellant fails to explain why he could 

not have uncovered the cited facts in June of 2020. Indeed, Appellant had 

every reason to ask Marvin about that phone call, since Appellant had 

previously complained of trial counsel’s failure to supply context to the phone 

call during timely PCRA proceedings. Appellant fails to explain why it took a 

little over two years for him to uncover this “new” fact and, thus, he cannot 

establish his due diligence. 

We readily dispose of Appellant’s second claim, which concerns the 

affidavit from Fatih Anderson relaying statements made by Nafeas exculpating 

Appellant. Abu-Jamal, supra, forecloses this claim. In addition to the 

affidavit from Yvette Williams, Abu-Jamal presented an affidavit from Kenneth 

____________________________________________

2014) (concluding, for purposes of due diligence analysis, that “it was highly 

unlikely that defense counsel, without any supporting factual basis, could have 

compelled Hector Toro to change his testimony during cross-examination, by 

engaging in a fishing expedition as to why Hector Toro was lying”). This case 

does not pose these difficulties because Marvin was plainly willing to assist 

Appellant as of June of 2020, if not before. 
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Pate, who asserted that he had a phone conversation with Priscilla Durham, 

in which she admitted to Pate that she fabricated her trial testimony that AbuJamal admitted to murdering a police officer. “According to Pate, Durham said 

the police told her she was part of their ‘brotherhood,’ and she had to testify 

she heard [Abu-Jamal] say he killed the police officer.” Abu-Jamal, 941 A.2d 

at 1266. The Court held that this statement “does not meet [Section]

9545(b)(1)(ii)’s exception because a claim based on inadmissible hearsay 

does not implicate this exception.” Id. at 1269 (citing Commonwealth v. 

Yarris, 731 A.2d 581, 592 (Pa. 1999)). Accord Commonwealth v. Brown, 

141 A.3d 491, 501 (Pa. Super. 2016) (holding that an affidavit from a third 

party who was prepared to testify that a man named Tommy Lemon confessed 

to the murder did not constitute a newly-discovered fact; “The alleged 

confession by Tommy Lemon is hearsay as it is an out-of-court statement 

offered for the truth of the matter asserted.”). Nafeas’ statements are likewise 

offered for their truth and do not constitute newly-discovered facts. 

Our disposition of the first two issues resolves Appellant’s third claim, in 

which he argues that the PCRA court erred in failing to hold an evidentiary 

hearing regarding these two affidavits. Even if the fact-finder credited Marvin 

and Anderson’s testimony, the newly-discovered-fact exception cannot be met

for the reasons stated supra. Thus, the PCRA court correctly declined to hold 

an evidentiary hearing.

We address Appellant’s remaining two claims together, as both involve 

Appellant’s attempt to raise newly-discovered facts concerning former 
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Detective Pitts.7 While Appellant’s initial response to the notice of intent to 

dismiss cited the internal affairs material as the relevant Brady material, 

Appellant now concedes that the relevant fact is the commencement of 

criminal charges against Pitts. Those charges are docketed at CP-51-CR4729-2022, and the trial is currently listed for July 8, 2024. Appellant submits 

that these charges “resulted from a jurist’s recognition of a prima facie case 

against him. This should be held to constitute a newly discovered and material 

fact for purposes of overcoming the PCRA time bar....” Appellant’s Brief at 15-

16. 

Appellant does not explain how the Commonwealth could have disclosed 

during discovery a fact that did not yet exist. To the extent that Appellant 

suggests that a judge’s recognition of a prima facie case means that the 

Commonwealth knew, prior to Appellant’s trial, that Pitts was untruthful about 

his interrogation tactics, we note that judicial decisions are not facts, see 

generally Commonwealth v. Watts, 23 A.3d 980, 981 (Pa. 2011), and 

Appellant fails to explain what particular facts the Commonwealth should have 

disclosed in discovery. We therefore limit our analysis to the newly-discovered 

fact that the Commonwealth filed criminal charges against Pitts. 

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7 Appellant’s fourth claim challenges the PCRA court’s failure to grant Appellant 

permission to amend his petition. As we conclude that Appellant failed to 

meet an exception to the time-bar, any error in that regard is irrelevant. 
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This fact standing alone cannot serve to overcome the statutory bar.

8

 

Appellant does not point to any concrete fact revealed by the criminal 

proceedings that has any bearing on his case. Whatever Pitts did in cases 

involving other suspects cannot be per se imputed to this case. Appellant’s 

claim is analogous to arguments that the death penalty is unconstitutional asapplied in any given case because of systemic flaws in the imposition of the 

death penalty. Our Supreme Court has held that a litigant cannot claim the 

death penalty is unconstitutional as-applied in a particular case based on such 

systemic faults. Instead, the litigant must show something specific to his or 

her case. The Supreme Court’s analysis of an as-applied challenge to the 

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8 As stated supra, in Appellant’s first PCRA petition, he raised a claim that Pitts 

“had a prolonged pattern of coercing false statements from defendants and 

witnesses in other cases.” White, No. 4056 EDA 2017, unpublished 

memorandum at 9. We concluded that such evidence would only impeach 

Pitts’ testimony. This newly-discovered evidence claim arguably fails for the 

same reason as the Marvin affidavit: Appellant previously litigated a claim 

concerning Pitts’ interrogation tactics and he cannot now rely on new sources 

to corroborate those facts. 

However, numerous jurists have expressed discomfort with the notion 

that new evidence that would only serve to impeach can never warrant a new 

trial. See Commonwealth v. Choice, 830 A.2d 1005, 1012 (Pa. Super. 

2003) (Klein, J., dissenting) (“[I]f the goal is to find justice, there well may 

be circumstances where after-discovered evidence that goes only to attack 

credibility may justify a new trial.”); Commonwealth v. Small, 189 A.3d 

961, 976 n.12 (Pa. 2018) (recognizing such criticisms). While the question 

here is one of jurisdiction as opposed to substantive merit, in these 

circumstances applying the “no new source” rule is effectively the same as 

applying the “no impeachment” rule. We therefore elect to dispose of the 

claim for other reasons. 
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death penalty in Commonwealth v. Hairston, 249 A.3d 1046 (Pa. 2021), 

illustrates that point:

Hairston argues that the system is unconstitutional as-applied, 

complaining of the manner in which it has been imposed and 

implemented upon Pennsylvania’s current death row prisoners.

Importantly, however, he does not assert that he himself has been 

impacted or affected by the defects in Pennsylvania’s capital 

punishment system identified in the [Joint State Government 

Commission (JSGC)] report. Although he asserts that the death 

penalty is arbitrarily imposed against people of low or impaired 

intellectual functioning, he does not argue that he is of low or 

impaired intellectual functioning. He does not assert that he is a 

victim of geographical bias; nor could he, as his crimes were 

committed in Allegheny County, where the JSGC report 

emphasized that prosecutors sharply limit the use of the death 

penalty. 

With regard to racial bias, Hairston does not contend that his 

conviction and death sentence resulted from racial bias against 

him or the race of the victim. Likewise, Hairston does not advance 

any argument that his conviction and sentence resulted from the 

lack of statewide-standardized process for funding, training and 

supervising defense counsel and/or because of discrepancies 

between private and public counsel. Nor does Hairston assert that 

his case resulted from an arbitrary exercise of prosecutorial power 

or from overly broad aggravating circumstances. To the contrary, 

he does not contend that at trial he was in any manner prevented 

from presenting evidence, including with respect to non-statutory 

mitigating circumstances. 

Id. at 1061. 

Similarly, even if we accept that the mere act of filing charges signals 

some sort of systemic flaw in how Pitts conducted interviews, it does not follow 

that Appellant himself was subjected to those tactics. We thus disagree that 

Appellant’s purported newly-discovered fact at this juncture creates
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jurisdiction to pursue a substantive claim.9 The fact is irrelevant and Appellant 

cannot establish jurisdiction. The PCRA court did not err in dismissing the 

petition.

10

 

Order affirmed.

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9 The Commonwealth and the PCRA court both alluded to the theoretical 

possibility that something could come out during those proceedings that would 

qualify as a valid newly-discovered fact. At the hearing on this petition, the 

PCRA court asked how the charges were relevant, since Pitts is presumed 

innocent until proven guilty. Appellant suggested that the court hold the 

petition in abeyance until the trial is completed, to which the PCRA court 

replied, “No, or I dismiss it and then you file a new one.” N.T., 6/8/23, at 8. 

The Commonwealth stated, “That would be a new fact, Your Honor, that would 

be the way to go.” Id. Nothing in our decision addresses that possibility. We 

conclude only that Appellant has failed to show that the commencement of 

criminal charges qualifies as a newly-discovered fact that lifts the time-bar.

10 We are mindful of our Supreme Court’s directive that the jurisdictional 

assessment does not involve any analysis of the merits of whatever claim 

would be pursued if jurisdiction is established. Still, “that principle cannot go 

so far as to altogether preclude the courts from considering the claim the 

petitioner seeks to raise in determining whether an evidentiary hearing is 

warranted.” Commonwealth v. Robinson, 185 A.3d 1055, 1061 (Pa. Super. 

2018) (en banc). Thus, in Commonwealth v. Myers, 303 A.3d 118, 123 

(Pa. Super. 2023), we found no “causal connection” between the petitioner’s 

discovery that the judge who accepted his plea was convicted of stealing 

cocaine from an evidence locker and a collateral challenge to that plea. 

Similarly, the fact that Pitts has been charged with perjury in an unrelated 

case has no causal connection to Appellant’s case. 
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Date: 5/14/2024